Decision
Ms. X & Our Lady of Lourdes Hospital Drogheda
From Office of the Information Commissioner (OIC)
Case number: OIC-156353-N1N8K5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156353-N1N8K5
Published on
Whether the Hospital was justified in refusing access to records relating to the applicant’s late brother under Regulations issued under section 37(8) of the FOI Act
20 August 2025
The applicant’s undated FOI request was received by the Hospital on 21 June 2024. She sought access to records concerning her late brother’s admission to the Hospital, as well as information about his admission and related issues.
On 18 July 2024, the Hospital refused the request under section 37(1) of the FOI Act (third-party personal information). It also considered the Regulations made under section 37(8) of the FOI Act, which provide for the potential release of deceased persons’ records to certain parties including the next of kin. The Hospital said that it was satisfied that the applicant was “a next of kin”. However, having regard to the circumstances and the public interest, it considered that she was not entitled to access to the requested records under the Regulations.
The Hospital received the applicant’s undated internal review application on 9 August 2024. Its internal review decision of 19 December 2024 affirmed its refusal of the request, on the basis that sections 37(1) and 35(1)(a) (confidential information) of the FOI Act apply. It did not outline any consideration that may have been given to the Regulations.
On 7 February 2025, the OIC received the applicant’s application for a review of the Hospital’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, and correspondence between this Office, the Hospital and the applicant, and the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the Hospital was justified under the FOI Act in refusing to grant the applicant’s request.
The applicant is seeking to understand matters relating to her late brother’s medical history, and parts of her request seek information. However, requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for making her request, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Section 37(1) - personal information
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual). The FOI Act provides that personal information includes information about an individual’s medical history.
However, personal information may still fall for release under other provisions of section 37 of the FOI Act. In particular, section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, are the relevant Regulations in this case (the Regulations).
The Regulations
Speaking generally, the Regulations provide that, notwithstanding section 37(1) (and subject to the other provisions of the FOI Act), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the next of kin of the individual and the public body considers that, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.
The Regulations define “next of kin” as
(a) issue,
(b) parent,
(c) brother or sister,
(d) a niece or nephew, or
(e) any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965.
The definition operates so that, where more than one paragraph of it is applicable in a given case, the person falling within whichever paragraph is numerically the lowest shall alone be regarded as the next of kin of the individual concerned.
The Hospital’s position
As noted earlier, in its decision the Hospital said it was satisfied that the applicant was “a next of kin” of her late brother. However, I understand from the Hospital that, having examined other records that it does not consider to be covered by the request, it is no longer certain that it can treat the applicant as the next of kin for the purpose of the Regulations. I understand that it wishes to engage with the applicant in relation to this matter.
I appreciate why the requested records are important to the applicant. However, I cannot take this into account in my decision. I also note the applicant’s position that she was informed by the Hospital and a nursing home when her brother was being transferred, and that she paid for his funeral. However, she only has a potential right of access under the Regulations if she is the next of kin as defined in the Regulations. It follows that I am unable to consider the Hospital’s application of the Regulations in this case until the matter is resolved. Furthermore, I do not consider it appropriate to consider the other exemptions claimed by the Hospital in isolation.
In all of the circumstances, it seems to me that the most appropriate decision for me to make is to annul the Hospital’s decision in this case, and to direct it to make a fresh decision on the applicant’s request (including on the matter of her status as the next of kin for the purpose of the Regulations) in accordance with the provisions of the FOI Act. If she is dissatisfied with the Hospital’s fresh decision, the applicant is entitled to seek an internal review of the matter, and in turn a fresh review by this Office.
I appreciate that the applicant will be very disappointed with this outcome. I understand that the Hospital intends to contact her in relation to the matter as soon as possible. The OIC will also endeavour to prioritise any application for review that she may make to us arising from the Hospital’s fresh decision on her request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s refusal of the applicant’s request. I direct it to make a fresh decision on the matter in accordance with the provisions of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
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Anne Lyons
Investigator